Report of the Independent Surveillance Review
3.
111
For the acquisition of communications data otherwise than in bulk, an
authorisation by the relevant public authority. Communications data should only
be acquired after the authorisation is granted by a designated person.
5.59
Secretaries of state and the judiciary both play an important role in the authorisation
of intrusive powers. Judges are best suited to applying the necessary legal tests, but
ministers are better informed about the nature of the threat and are best placed to
assess necessity and proportionality as they relate to national security. Ministers are
also in a better position to exercise political judgement over intelligence operations and
therefore have a legitimate role in the management of the state’s most intrusive powers.
5.60
Our starting point is that judicial commissioners should play a full role in the warrantry
process rather than sampling some warrants ex post (as they do currently). This would
mean appointing judicial commissioners on a full-time basis and who would be able to
cater for urgent requests and therefore would require proper resources.
Recommendation 10: We recommend that the government adopts a composite
approach to the authorisation of warrants, dependent on the purpose for which the
warrant is sought and subsequent degree of ministerial input required. Our approach
does not discriminate between whether it is law enforcement or an intelligence agency
submitting the warrant.
1.
2.
Where a warrant (see points 1a, 1b and 2 in Recommendation 9) is sought for
a purpose relating to the detection or prevention of serious and organised
crime, the warrant should always be authorised by a judicial commissioner. Most
police and other law-enforcement warrants would fall into this category. A copy
of each warrant should be provided to the home secretary (so that the home
secretary and officials can periodically examine trends in serious and organised
crime, for example).
Where a warrant (see points 1a, 1b and 2 in Recommendation 9) is sought for
purposes relating to national security (including counter-terrorism, support to
military operations, diplomacy and foreign policy) and economic well-being, the
warrant should be authorised by the secretary of state subject to judicial review
by a judicial commissioner. The review should take place before implementation
of the warrant. If there is a case of urgency the secretary of state should be
able to direct that a warrant comes into force immediately, and the judicial
commissioner should be notified straight away and the judicial review conducted
within fourteen days.
The judicial commissioners in charge of the authorisation of warrants should not be
part of a new National Intelligence and Surveillance Office nor should they be based
in a government department, but alternative office facilities should be sought so
that the commissioners are accessible but remain independent. To ensure no loss of